Rereading the Constitution

[Ernie S.]

Madison introduced the amendments (19 of them) which became the first to the 10 and the 27th.
Want to read what Madison sent to the House?
http://www.constitution.org/bor/amd_jmad.txt
The house altered and merged some of the original amendments and got it down to 17. Here is what the house passed:
American Memory from the Library of Congress))
The Senate (who back then were elected by state legislatures not direct vote) further altered and reduced it to 12.
American Memory from the Library of Congress))

The first article was never passed by the states. The second article finally passed 202 years later and became the last amendment, the 27th. The others form the Bill of Rights.

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I'd really like to see the LOC material. Could you see what you can do to fix the links?

The links have been fixed.

Thank you. Have you found any discussion of what became the 27th amendment from those days? I wonder why is was not ratified back then.

 

[Texanmike]

I'm not looking at case law or settled law because I believe it is flawed.

Then you’re making any relevant discussion difficult, as the Constitution is in essence law – the culmination of over 1000 years of Anglo-American jurisprudence predicated on common law, case law and precedent, dating back to and before the Magna Carta.

Trying to figure out what the Constituiton says is not dependent on the Case law that has developed since the ratification. The Constitution is Statutory in nature and should be viewed as such. One of the problems I have with the evolution of the SCOTUS decisions is that they are dependent on eachother's rulings. Instead of going back to the original document they are in constant consideration of what was said before them. That is what I am trying to avoid. I don't want to read what a justice said 150 years after ratification, I want to look at what the authors said themselves.

The Framers’ original intent is often difficult to divine – they didn’t speak with a single voice or were of a single mind. Indeed, many changed their positions over the years.

I'm aware of what you're saying. My point is that the compromise did have a specific intent. The Constitution took a year to write (including the Annapolis Convention), it was not a quick, general compromise, it was very specific with small comittees that decided even the most minute details. I'm not trying to figure out what Jefferson and Hamilton each wanted seperately but what did the compromise that they reached mean? That they both had independent views, or that they changed their minds doesn't really matter. I'm reading as much as I can on the radification debates from the states. I think that those transcripts give us a great insight to what was actually sold to the states.

Given your parameters of discussion, one can only consider three tenets of the Constitution all Americans should consider ‘common ground.’

1. Inalienable rights – that one realizes his rights by virtue of being human, a ‘person,’ as noted in the 14th Amendment. Neither the government nor Constitution gave us our rights, nor may either take them away. The purpose of the Constitution, and the Bill of Rights in particular, therefore is to ensure these rights not be violated by the state.

2. The Rule of Law – the doctrine of the rule of law predates the Foundation Era, the Framers realized its importance hence their creation of a Republic, not a democracy. The Framers knew that men could not rule other men justly, that all three branches of the government and the people as well were subject to the rule of law. Even if a majority of the people should vote to take away a particular group’s rights, the Constitution would prohibit such preemption.

3. Judicial Review – as with the rule of law and inalienable rights, the doctrine of judicial review predates the Foundation Era as well and was known to the Framers as the only just and appropriate way to apply the laws to the people. The Federal courts were entrusted with the role of interpreting the Constitution to bring about resolution to disputes as to its meaning and appropriate application.

The authors often had conflicting intents for the same part of the Constitution. Take the debate between Madison and Hamilton over the General Welfare clause. BOTH men were authors of the Constitution - yet they had opposing opinions on the meaning of that clause. In such cases the only way to ultimately settle the difference is through the courts.

Correct. And the issue was settled in the case of McCulloch v. Maryland (1819). However flawed, it it’s the law of he land. To try to ignore it is naïve and pointless.
[/quote]
And that's what I'm trying to avoid. The "law of the land" isn't what I'm interested in 250 years later. I want to know the original intent of the law, not what the SCOTUS decided 100 40 years later.

Take McCulloch v. Maryland for example. I'm not sure if you have read the opinion but it is terrible. The opinion is written mostly off of what is not in the Consitution. And to your question about modern, I guess I should say any. I don't want to try to determine what the contract meant by listening to a judge after the fact. Not when so much is available from the days that it was argued and signed.

Agreed, it has nothing to do with right and wrong – it as to do with case law and precedent: how have jurists addressed the issue in the past, what ruling or judgement would be consistent with that.

The "modern interpretation" is what I have a problem with. Congress shall make no law... The "shall and shall not". They see self explanatory and don't seem like they are open to modern interpretation if you ask me.

It depends on what one means by ‘modern.’ Are Marbury and McCulloch modern? Yet these seem the most controversial rulings the Court ever made, for some.

The bigger question I have now is, what is the purpose of putting restrictions on what a government may or may not do if you believe those restrictions change as society evolves without ever voting on these changes?

Per the rule of law changes would not be voted on in the first place – one’s rights are not subject to popular opinion.

The conflict is between two new Constitutional factions: the Pre Amendment faction that focuses on government restriction with regard to the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause, that the courts have given Congress too broad authority. Many see this too broad authority as a violation of ‘individual rights’ where one has the right to run his business free from government regulation, for example.

The Post Amendment faction, on the other hand, focuses their concern with regard to ‘individual rights’ in the context of government restriction concerning privacy rights, 4th Amendment search and seizure rights, 5th and 6th Amendment due process rights, and 14th Amendment equal protection rights.

In addition to not speaking the same ‘individual rights language,’ the two factions conflict on emphasis of importance, where the Pre Amendment faction is not overly concerned about due process and equal protection issues and the Post Amendment faction isn’t overly concerned about property and business rights.

The first step toward rapprochement would be for both factions to try to give greater concern for the others’ Constitutional priorities.

Of the three clauses, (supremacy, necessary and proper and commerce) only one actually grants any specific authority to the federal government. The supreacy clause is restricted by the phrase "which shall be made in Pursuance thereof". It doesn't grant any additional powers other than saying if it is constitutional then it is the supreme law of the land. The necessary and proper just grants congress the authority to make laws to carry out the enumerated powers.

The commerce clause grants Congress the authority to regulate commerce obviously. The debate today should take place within the same confines that it did in 1788, it should not be some modified and expanded debate for the purposes of exapnding the power of the federal government. There is no point in writing a constituiton which grants specific authority if the government is able to expand its own authority by adding "intent" to the debate.

That is the very reason I want to examine all of this. It is something I am constantly doing but I find myself kind of secluded from discussion when I do it because the things that I read and the ideas that I develop are very specific in nature and I have found that most people today don't thave the tolerance to analyze things like sentence structure, similarities between sentences and contextually correct debates that were presented by different sides during the debates.

Also, if anyone wants it or has any specific areas of interest let me know. Obviously I will have an opinion and usually offer it but I have no problem dumping quotes and original texts here for you to read as well. Because it is all part of public record most of what I read is part of public record and not normally subject to any sort of copyright infringement. Further I can posts sentences from the things and you can usually type that in with quotations in google and get a good reference to the document online. I do that a lot even when I have the paper back edition because it makes it so much easier to compare texts and statements when I have two windows open with the ability to search for specific terms.

I know some of you see this as an exercise in futility but I'm really enjoying it LOL.

Mike

 

[OohPooPahDoo]

=
Trying to figure out what the Constituiton says is not dependent on the Case law that has developed since the ratification. The Constitution is Statutory in nature and should be viewed as such. One of the problems I have with the evolution of the SCOTUS decisions is that they are dependent on eachother's rulings. Instead of going back to the original document they are in constant consideration of what was said before them. That is what I am trying to avoid. I don't want to read what a justice said 150 years after ratification, I want to look at what the authors said themselves.

What happens when two people disagree on what the meaning of the original document is? Who decides who is right? You?

 

[Texanmike]

=
Trying to figure out what the Constituiton says is not dependent on the Case law that has developed since the ratification. The Constitution is Statutory in nature and should be viewed as such. One of the problems I have with the evolution of the SCOTUS decisions is that they are dependent on eachother's rulings. Instead of going back to the original document they are in constant consideration of what was said before them. That is what I am trying to avoid. I don't want to read what a justice said 150 years after ratification, I want to look at what the authors said themselves.

What happens when two people disagree on what the meaning of the original document is? Who decides who is right? You?

Its unlikely that I am going to get anyone to see things exactly my way. I am just offering what I find. If someone disagrees with me, that's their decision. What I really am trying to accomplish here is a look at what I find including the documents I read. I was reading stuff written by John Taylor of Caroline last night for example. As soon as I can come up with how I think that fits in to my views I'll post my opinion. If someone doubts or has questions I'll discuss it or I'll post the source material and you can make up your own mind. I'm an autodidact and I'm not trying to tell anyone else what to think, I'm just doing it for my own information. Constitutionality is something that is important to me and something I spend a lot of time reading and researching. I just figured it would be a good discussion.


I mean seriously, you don't have to agree with me, you have the right to your own incorrect opinion.

Mike

 

[OohPooPahDoo]

=
Trying to figure out what the Constituiton says is not dependent on the Case law that has developed since the ratification. The Constitution is Statutory in nature and should be viewed as such. One of the problems I have with the evolution of the SCOTUS decisions is that they are dependent on eachother's rulings. Instead of going back to the original document they are in constant consideration of what was said before them. That is what I am trying to avoid. I don't want to read what a justice said 150 years after ratification, I want to look at what the authors said themselves.

What happens when two people disagree on what the meaning of the original document is? Who decides who is right? You?

Its unlikely that I am going to get anyone to see things exactly my way. I am just offering what I find. If someone disagrees with me, that's their decision. What I really am trying to accomplish here is a look at what I find including the documents I read. I was reading stuff written by John Taylor of Caroline last night for example. As soon as I can come up with how I think that fits in to my views I'll post my opinion. If someone doubts or has questions I'll discuss it or I'll post the source material and you can make up your own mind. I'm an autodidact and I'm not trying to tell anyone else what to think, I'm just doing it for my own information. Constitutionality is something that is important to me and something I spend a lot of time reading and researching. I just figured it would be a good discussion.


I mean seriously, you don't have to agree with me, you have the right to your own incorrect opinion.

Mike

Uhh. OK


What happens when two people disagree on what the meaning of the original document is?

 

[C_Clayton_Jones]

Clearly there are also those who incorrectly perceive the Constitution as a political document, as if it were merely a ‘blueprint’ for government. Certainly the Constitution addresses the mechanics of governance but it does so in the context of the law, from which it derives its authority. Indeed, the Constitution is a legal document, an entity of the law and courts, to attempt to divorce the Constitution from the law, judicial review, and its interpretation by the courts is inappropriate and naïve.

As Justice Kennedy correctly noted in Lawrence:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

 

[OohPooPahDoo]

Certainly the Constitution addresses the mechanics of governance but it does so in the context of the law, from which it derives its authority.

The Constitution is the HIGHEST law - it does not derive its authority from LAW - it derives its authority from the PEOPLE. Read the Preamble perhaps?


How should disputes between how the Constitution is applied be settled? Should we dig up the Founders and ask them?

 

[zzzz]

I'd really like to see the LOC material. Could you see what you can do to fix the links?

The links have been fixed.

Thank you. Have you found any discussion of what became the 27th amendment from those days? I wonder why is was not ratified back then.

The 27th amendment is a story in itself. Instead of going into it in detail, here is a link that details the curious course of this amendment and why it took 202 years.

The Straight Dope: What's up with the 27th Amendment to the U.S. Constitution?

 

[Fishlore]

What the people who wrote the original version of the Constitution meant (or what they thought they meant) is an interesting topic but not as important as it might appear. The meaning of something a person writes or says is not something conveyed from writer to reader through words. When you read or hear another's words, you reconstruct the meaning in your own mind using a variety of tools (language knowlege, experience, ideology etc.) No two people construct exactly the same meaning from a set of words such as the Constitution.

The old idea that words convey meaning understands words to be like cupcakes. The Founders baked up the Constitution and sent it down through time to us much as one might send a box of cupcakes to a kid at summer camp.

But a much more accurate understanding would be that the Founders invented a recipe for cupcakes and mailed it each of us. Each of us then tried to follow the recipe with the ingredients and utensils at hand to bake our own version of the recipe.

Under either understanding of the relationship of words to meaning, it seems reasonable to conclude that the people who wrote the Constitution fully and consciously intended to let white people buy and sell black people like cattle, subject to state regulation. It is a reality worth keeping in mind when assessing the value and role of the Framers' intent.

 

[ladyliberal]

I'm sorry about my use of the word "academic". I have the highest respect for academic pursuits, and I tried to make that clear with my interjection "though worthy!" but I see that my words did indeed come off as dismissive. I didn't mean them to be-- this is an incredibly interesting, thoughtful and respectful thread. What I meant was that many political questions cannot be resolved by considering the original intent of the founders.

Your list of sources is quite impressive. In trying to examine the philosophies of the framers, you've eschewed sources that lie in their future, but do you have any interest in their past? If so, you might want to read up on British political philosophers like Hobbes, Locke, and Bacon, and read up on English common law, which contains many provisions similar to those found in the US Constitution. Given your extensive reading, I suspect you've already come across references to these.

 

[Texanmike]

I'm sorry about my use of the word "academic". I have the highest respect for academic pursuits, and I tried to make that clear with my interjection "though worthy!" but I see that my words did indeed come off as dismissive. I didn't mean them to be-- this is an incredibly interesting, thoughtful and respectful thread. What I meant was that many political questions cannot be resolved by considering the original intent of the founders.

Your list of sources is quite impressive. In trying to examine the philosophies of the framers, you've eschewed sources that lie in their future, but do you have any interest in their past? If so, you might want to read up on British political philosophers like Hobbes, Locke, and Bacon, and read up on English common law, which contains many provisions similar to those found in the US Constitution. Given your extensive reading, I suspect you've already come across references to these.

Oh, I didn't really take offense or anything. It isn't that I think we can resolve political questions so much as we can figure out how to fix this country. I semi-frequently call a certain liberal talk show (Make it Plain) and have talked with the host on numerous occasions about how the problem with politics today is the lack of representation and the misunderstanding of the original intent.

I hold the Constitution in the highest regard but sadly I think that the resolution is ultimately in an article V convention. I think that we must examine what worked and what didn't work and if we can't get back to the basics that we will ultimately be making significant amendments or rewriting it. There has been a lot of discussion about some things in this and many other threads and I'm kind of coming to the conclusion that the US is fundamentally split on how they want to be governed. It is time for the left and the right to sit down and discuss a forum for this to happen before we screw this up any further, and that's kind of what I'm taking away from rereading the constitution. It seems that most people don't actually read it, they find a way to use it because the more I read and the more I research the more it becomes clear to me that this wasn't an accident. There wasn't some miracle in Philly, there was a long and vigorous debate and in the end a contract was entered. I look at some of the accounts of the convention and I get the impression that there were things that were non-negotiable on both sides.

I contrast the DoI and the Constitution and the difference in tone and debate is amazing. While there was certainly not universal agreement (or even close to it) over the DoI, it was the result of a group of men working to achieve a common goal. The Constitution did not come about in that way. The Constitution was very much a negotiation. Hamilton, Madison, Mason, Taylor and even Franklin and Jefferson all had very specific designs. They represented their states (though not so faithfully in some cases). I know this is open to debate, but if the Constitution has any weight then it must mean what it said. If it was truly an "Idea" and not a contract (like the DoI) then it really has no force. Of course it has force and is a legally binding document. And I'll admit its hard for me to be objective. Prior to McCain getting the election I was a card carrying Republican. I had to try very hard to break myself of "using the Constitution" and begin to just read it. The best two examples are Same Sex Marriage and Drug Use. I still believe that homosexuality is wrong, but that is immaterial, my view on it is not important. The same with drug use. It is hard to not try to find ways to hold these debates at a national level but its fruitless I believe they will eventually tear the country apart at the seams. If I can't leave you alone in Florida (generalization here) and you can't let me live how I want in Texas, then it is of no benefit for us to be in Union. That means that I must not only stop my crusade to show you in Florida how to live, but I must actually embark on a new crusade to show you in Florida that it is ok for us to have different lifestyles and rules within our states and to still remain in league with one another.

George Mason once rose at one of the smaller committees in the convention (I'll find it if you need the specific reference... its just something that always stuck with me) and said essentially that it is impossible for someone in New York to tell a farmer in Carolina how to live. He said that the Union would collapse if that happened because New York would do what is best for New York and Carolina would eventually tire of it and leave the union. Again, I apologize for not having the specific reference and I'll look it up if you want. (But I have early release of Madden 12 so I've been on a political hiatus for a few days).

Oh well. Madden time for a few more days, then I'll resurrect this thread.

Mike

 

[Texanmike]

There is a statement in the convention that I find particularly interesting. Oliver Ellsworth, an often over looked FF from Conneticut who's was fiercely opposed to slavery maintained that the states should decide.

Mr. ELSEWORTH was for leaving the clause as it stands. let every State import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves. What enriches a part enriches the whole, and the States are the best judges of their particular interest.

I think this is even more evidence (and I'll just come back and put other quotes as I refind them) that the states were to be autonomous. I think I'm going to just change the title of each post and come back and put more information on the concepts so its easier to read than having to read through all the pages of the thread.

Mike

 

[Texanmike]

OK. So there is a lot of debate about the Commerce clause. As I look, I'm just going to come back and add to this post as I see relevant quotes. I have my opinions but I'll just leave them out of this post and resort to just quoting what I find as I come across it. I'm not quoting out of context and just as a guide if you take what I leave and put it into google you should be able to find the full quote in context if you want to read more.

That, pursuant to their several appointments, they met, at Annapolis in the State of Maryland, on the eleventh day of September Instant, and having proceeded to a Communication of their powers; they found that the States of New York, Pennsylvania, and Virginia, had, in substance, and nearly in the same terms, authorised their respective Commissioners " to meet such Commissioners as were, or might be, appointed by the other States in the Union, at such time and place, as should be agreed upon by the said Commissioners to take into consideration the trade and Commerce of the United States, to consider how far an uniform system in their commercial intercourse and regulations might be necessary to their common interest and permanent harmony, and to report to the several States such an Act, relative to this great object, as when unanimously ratified by them would enable the United States in Congress assembled effectually to provide for the same."

Mike

 

[Fishlore]

Interpreting or understanding the Constitution has many of the same issues as interpreting the Bible. There are inerrant literalists like Scalia or Billy Graham when it comes to both texts. These folks are characterized by the emotional intensity with which they insist on their views to the exclusion of all others. That's fine when it comes to the Bible because each of us, under our Constitution, is entitled to his own beliefs. Things are more difficult when it comes to the Constitution itself because each of us is not entitled to his own laws. "My way or the highway," as a principle of constitutional law mucks up the machinery of our democracy.

 

[Oldguy]

What I mean by original intent, is, for example... look at the First and the Fourteenth Amendments. Duid the states ratify something that allowed the federal government more involvement in the lives of the individual communities? Was it intended to apply the First Amendment to the states? How can you apply a "right" that starts off with "Congress shall make no law" to the states?

But, those are questions only an independent judiciary can answer definitively, in terms of the law. Anything else is just speculation and opinion, neither of which are enforceable laws.

By rejecting court opinions at the outset, you've deprived yourself of understanding the Constitution at all and how it affects us today. The Constitution is not a rigid document, set in stone, nor was it intended to be.